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United States v. James Henry Ferguson, 911 F.2d 725, 4th Cir. (1990)
United States v. James Henry Ferguson, 911 F.2d 725, 4th Cir. (1990)
2d 725
Unpublished Disposition
Appeal from the United States District Court for the District of South
Carolina, at Orangeburg. Charles E. Simons, Jr., Senior District Judge.
(CR-89-122-5)
I.S. Leevy Johnson, Johnson, Toal & Battiste, Columbia, S.C., for
appellant.
E. Bart Daniel, United States Attorney, Eric Wm. Ruschky, Assistant
United States Attorney, Columbia, S.C., for appellee.
D.S.C.
AFFIRMED.
Before PHILLIPS, SPROUSE and CHAPMAN, Circuit Judges.
PER CURIAM:
James Henry Ferguson appeals the district court's denial of his motion for a
judgment of acquittal. Convicted by a jury on two counts of attempt to possess
cocaine with intent to distribute, Ferguson contends that there was insufficient
evidence to have submitted the case to the jury so that the district court erred in
denying his motion for acquittal. We affirm.
2
On March 23, 1989, an Express Mail package arrived in the Santee post office
addressed to John Ferguson, Route 2, Box 714-C, Santee, South Carolina.1
Again, authorities learned that the return address on the package was an
abandoned building in New York. Postal inspectors obtained a federal search
warrant for the package and, upon opening the package, they discovered
approximately thirty grams of crack cocaine, empty vials and vial caps.2 The
postal authorities removed most of the crack cocaine and replaced it with soap.
On March 24, 1989, postal inspectors delivered the package to the defendant's
home. Ferguson signed for the package and took it into his residence. Minutes
later, postal inspectors and local law enforcement officers presented the
defendant with a federal search warrant and searched his home. They
uncovered a small metal tube, a small plastic set of scales and a vial--all with
cocaine residue. Additionally, they uncovered a bag of plastic vials, $1,424 in
cash wedged between a wall and a dining room cabinet, and a slip of paper with
Brenda Asbery's name and address on it.
On or about March 25, 1989, another handwritten Express Mail parcel from
New York arrived in the Santee post office. It was addressed to Brenda Asbery,
Route 2, Box 723-D, Santee, the same person and address on the slip of paper
uncovered at the defendant's home. This package also had a fictitious New
York return address. After a drug dog alerted to the package, authorities
obtained a federal search warrant, opened the package, and found
At trial, postal inspectors and local law enforcement officials testified that
during the search of Ferguson's house, the defendant denied knowledge of who
sent the packages to him, but admitted to using the crack sent to him and to
giving it away to friends. One officer testified that when he asked the defendant
about the eleven previous packages sent to his address, Ferguson protested that
only about seven of the packages contained drugs. 4 Officials further testified
that during the search, the defendant asked if he could "smoke up" and later
unsuccessfully tried to smoke a cigarette which contained crack cocaine.
Finally, an officer testified that Ferguson directed him to a small piece of metal
tube in the backyard, which the defendant allegedly admitted he used as a crack
pipe.
The government also provided evidence that between August 8, 1988, and
March 22, 1989, the defendant and his wife wired to their son in New York a
total of $13,990 at a cost of $623. Also, between October 26, 1988, and January
31, 1989, a total of $7,816 in cash was deposited in the defendant's bank
account. Withdrawal of $5,000 was made on February 14, 1989, and again on
February 23, 1989.
10
Brenda Asbery, who lived with the defendant's nephew, testified that in early
March 1989, a package arrived addressed to her. As the package arrived at her
mailbox, Ferguson attempted to retrieve the package, claiming that it was
intended for him. He explained that he and his wife were having difficulties and
that his wife would destroy anything sent to him. Asbery stated that she gave
Ferguson permission to use her box, but asked that he inform her in the future.
Asbery testified that she knew nothing about the Express Mail parcel mailed to
her on March 23, 1989, nor did she know how the piece of paper with her name
and address on it came to be in the defendant's home.
11
Testifying in his defense, Ferguson first denied, but then later admitted, that he
quit his position at Con Edison in New York after testing positive for cocaine
use. According to the defendant, he then moved to Santee, South Carolina,
On July 26, 1989, a jury convicted the defendant of Counts One and Two of the
indictment--attempt to possess cocaine with intent to distribute. The jury
acquitted the defendant of the third count--possession of cocaine with intent to
distribute. The district court sentenced Ferguson to 168 months imprisonment,
recommending that he serve this sentence concurrently with a sentence he is
presently serving in the Florida Department of Corrections.
II
13
The standard of review for a sufficiency of the evidence claim is whether, after
viewing the evidence in the light most favorable to the government, any
rational trier of fact could find the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States
v. Jones, 735 F.2d 785, 790-91 (4th Cir.), cert. denied, 469 U.S. 918 (1984). In
making this determination, we remind ourselves that the credibility of witnesses
lies within the sole province of the factfinder and is not susceptible to appellate
review. Pigford v. United States, 518 F.2d 831, 836 (4th Cir.1975). Guided by
these standards, we find ample evidence in the record from which a jury could
find Ferguson guilty as charged beyond a reasonable doubt.
14
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and oral argument would
not aid the decisional process.
15
AFFIRMED.